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After a two-year pause in the fin whale (Balaenoptera physalus) hunt, Icelandic whaling company Hvalur hf. will resume whaling this summer, with a government-issued quota.

Two factors help explain why Iceland and other countries are determined to hunt whales in defiance of international disapproval. The first is demand for the product; the second is Iceland’s interpretation of international law on whaling.

Whale meat and its buyers

Demand for whale meat appears to be stable in Iceland. Many reports suggest that Icelanders no longer eat whale meat in great numbers. Yet minke whale (Balaenoptera acutorostrata) meat is readily available in supermarkets and sells for the equivalent of A$29.80 per kilogram.

Much of this is imported from Norway, indicating that there remains a strong domestic demand that is not being met by Icelandic whaling, and suggesting that it is not just Iceland’s growing number of tourists who want to eat whale meat. The fin whale hunt, in contrast, is intended primarily for export to Japan.

Fundamentally different rationales

The second, and far more complex, factor to understand why pro- and anti-whaling nations differ is that they have different interpretations of the basic purpose of the international regime to protect whales.

Iceland was an original member of the International Whaling Commission (IWC) and accepted the temporary halt on commercial whaling, which came into effect in the mid-1980s.

However, Iceland left in 1992 after the IWC refused to authorise quotas, even when scientific evidence indicated that controlled commercial whaling would not threaten the survival of the targeted species. The zero quota on all whale species, irrespective of their conservation status, has been criticised by several other countries, including Norway and Japan, as non-scientific.

Iceland later re-adhered to the convention, but with a reservation to the temporary ban. Iceland’s reservation included the statement that:

Under no circumstances will whaling for commercial purposes be authorised without a sound scientific basis and an effective management and enforcement scheme.

Iceland argued that the ban had become a permanent one and that this was contrary to the object and purpose of the convention, which was initially about regulating whaling rather than prohibiting it.

Essentially, Iceland and other pro-whaling countries reject arguments that the object and purpose of the convention has evolved into the preservation of whales rather than their conservation for sustainable use.

Iceland also objects to the ongoing situation whereby a scientific procedure adopted by the IWC to assess stocks and the potential for sustainable whaling was not followed up by the promised adoption of a non-scientific (political) scheme that would allocate actual quotas. Because of majority voting in the IWC, this standoff has created a persistent stalemate between pro- and anti-whaling countries.

Iceland’s current position

After a couple of years of heated discussions among members, Iceland was readmitted to the IWC. However, other countries (including Australia) still object to its reservation, meaning there is no universal acceptance of Iceland’s position.

If Iceland were cast out of the IWC, then it would not be bound by the convention at all. However, it would not be able to export to other IWC members, including Japan.

The whaling firm Hvalur hf. intends to resume its commercial hunt for fin whales in June. Quotas have been awarded consistently since 2006, but in 2016 and 2017 the company did not use them, citing doubts about profitability because of difficulties reaching target markets (especially Japan). A couple of shipments of whale meat were made recently (one in 2015 and one in 2016), using the Northern Sea Route to avoid customs delays and, potentially, protesters at Dutch harbours. The pause merely reflected the commercial reality of the time.

For 2018, Fiskistofa (the Directorate of Fisheries) has set a quota of 161 fin whales, with an additional 30 carried over from the unused 2017 quota. Although the IUCN listed the fin whale as endangered in 2008, there are no concerns about sustainability since the Icelandic quota represents 0.9% of the lowest estimate of fin whale numbers off the Icelandic coast.

The harvest is primarily destined for the Japanese market, which had been difficult to access for a number of reasons, including the effects of the 2011 tsunami, which disrupted processing facilities.

Minke whales are hunted by the company IP-Útgerð ehf., mostly for Icelandic consumption. In 2017, only 17 were taken. This was well within the quota of 269, although numbers were higher in previous years. The IUCN assesses the status of minke whales as “least concern”.

Iceland is making no efforts to stop whaling and never has. Unlike Japan, Iceland does not claim that its whaling is for scientific research, which is authorised under Article VIII of the whaling convention. It agreed to the temporary ban in order to gather scientific evidence that was supposed to protect the whaling industry in the medium to long term.

Iceland has never had sentimental ideas that whales should not be hunted. Nevertheless, the country has two whale sanctuaries, in Faxaflói (the bay around Reykjavík) and in the north, to support the tourism and whale-watching industry.

Whaling might not be popular in some countries – and indeed some Icelanders would like to see it end – but foreign interference is viewed with suspicion and is more likely to make the traditionalists who support the whale hunt dig in their heels (and harpoons) still further.

Whales had another big win last week – allegedly. The Australian-sponsored resolution adopted by the International Whaling Commission will, in theory, make it harder for nations such as Japan to award themselves special permits for “scientific” whaling.

Australia’s delight at the new resolution echoes its response to the International Court of Justice’s 2014 ruling that Japan’s JARPA II whaling program was unlawful.

But since then it has been business as usual for Japan, which simply created a new and different research program – one that makes it very difficult for Australia or anyone else to take it to The Hague again. It is hard to see what these legal and diplomatic victories have achieved in a practical sense, beyond prompting Japan to entrench its resolve to continue with its whaling programs.

It is time for some new tactics. Legal and diplomatic skirmishes with Japan and other pro-whaling nations might feel like the right thing to do. But they deliver little benefit to the whales, and could potentially provoke pro-whaling nations into leaving the IWC altogether.

Longstanding impasse

Before setting out my views as to the way forward, I must state that, on a personal and moral basis, I am absolutely opposed to any whaling whatsoever. I would like to see the complete cessation of whaling by any country in the world.

Unfortunately, however, it does not appear that the events at the recent IWC meeting will change much in practical terms. To be sure, any reform of the IWC is welcome. However, the failure to achieve the required three-quarters majority for the establishment of a South Atlantic whale sanctuary, coupled with the non-binding character of such resolutions, means the IWC has once again proven itself incapable of achieving a strong consensus on contentious issues relating to the protection of whales.

Herein lies the problem. Although this might sound strange coming from a law professor, I believe that the formal legal system is not an effective way to resolve long-entrenched impasses in a way that best serves the interests of the whales themselves.

This is particularly true when the issue draws such emotional responses from all sides. Using the IWC as an ideological battleground does not get us very far in terms of protecting whales.

In its early years, the IWC was characterised as a “whalers’ club”, allocating quotas to member states at levels that significantly harmed whale numbers. Over the past 30-40 years, however, nations such as Australia, New Zealand and Britain have become fiercely anti-whaling, and the commercial whaling industry has met its demise.

As a result, the IWC has over time adopted a much stronger anti-whaling stance, putting it at odds with the whaling states (including Japan, Norway and Iceland) and causing considerable tensions within the IWC.

These tensions have been exacerbated by the fact that, even though the underlying sentiment of many member states has changed, the terms of the 70-year-old treaty have not. That makes it hard for the IWC to morph seamlessly from a resource-management body into a conservation forum.

The logical endpoint

The worst-case outcome would be if Japan (or any other whaling state) feels it is being pushed too far at IWC meetings, and decides to withdraw altogether, which nations can do with as little as six-months’ notice under Article XI of the Convention. Such a country would no longer be bound by any of the restrictions established under the treaty regime – including the moratorium on commercial whaling that has been in effect since the mid-1980s.

Breaking away from the IWC would undoubtedly bring with it significant political and diplomatic costs, making it perhaps unlikely that nations will seriously consider it for now. But if the adversarial tensions continue, pro-whaling states could eventually decide simply to leave the IWC process in order to pursue commercial whaling with little or no international controls. If this were to happen the IWC would have presided over an ecological catastrophe for whales.

Japan’s response to recent developments has shown that a complete cessation of whaling cannot be achieved, at least in the short term. The only rational and pragmatic response is therefore to ensure that as few whales as possible are taken.

I believe the only way for that to happen is for IWC members to agree a compromise based on widely accepted environmental principles such as sustainability. The sad fact for strong anti-whalers such as myself is that this may involve some whaling, albeit on a far more controlled basis than at present.

In this way, the dubious reliance on “scientific” purposes as a disguise for what many observers regard as commercial whaling would end, replaced by a credible system to which everyone has agreed.

It is important not to lose sight of the ultimate purpose here: to preserve whales and do everything possible to protect them. The current emotionally charged legal and diplomatic battles, no matter how worthy and principled, aren’t really in the best interests of these magnificent creatures. An international management regime based on cooperation and clear, objective principles offers a far more promising prospect for their future than the current stalemate.

This resolution aims to tighten the loophole that allows nations to catch whales under the guise of scientific whaling. It provides for greater oversight of the currently self-assessed special permits for lethal scientific whale research.

Where next for Japanese whaling?

Japan conducts its whaling under a self-issued permit, under Article VIII of the International Convention for the Regulation of Whaling. This article allows a country to grant its nationals special licence “to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit”.

In 2014 the International Court of Justice ruled Japan’s JARPA II whaling program illegal on the basis that it was “not for the purposes of scientific research” and therefore in breach of Article VIII. But crucially it did not ban all future scientific whaling activities by Japan.

After the decision, Japan created a new research programme called NEWREP-A (New Scientific Whale Research Program in the Antarctic Ocean), which purported to have different scientific methods to its predecessor.

As Japan no longer recognises the jurisdiction of the International Court of Justice regarding “living resources of the sea”, arguments on adherence to the broader principle laid down in the decision would possibly be in vain.

A new tack

This brings us back to the new resolution, which was brought to the IWC by Australia, New Zealand and other anti-whaling nations in a bid to make it harder for nations such as Japan to issue themselves with special permits for scientific whaling.

The underlying principle is Australia’s repeated assertion that “lethal scientific research is simply not necessary”.

Japan’s new NEWREP-A program included the killing of 333 minke whales in the 2015-16 season, and the IWC’s Scientific Committee was powerless to prevent Japan from proceeding, given that the conditions of special permits are currently self-assessed and can proceed without scientific endorsement from the committee.

The new resolution establishes a Working Group under the Convention, which will consider the Scientific Committee’s recommendations in relation to all special permits. It also gives a greater role to the Commission in the process of issuing special permits.

The aim is to apply much greater scrutiny to the granting of special permits, rather than allowing nations simply to award them to themselves. Plans for special permits are requested to be submitted to the new working group at least six months in advance of the Scientific Committee’s meeting, alongside the data used to back up a country’s claims to be running a scientific whaling program. These data will be evaluated both during the program’s development, and during ongoing and final reviews.

These inquiries into the special permit will then be presented to the IWC itself, which will form its own official view on the proposed whaling program and publish its findings.

Overall, the resolution gives the Commission a much greater role in deciding whether a given nation should be allowed to kill whales. But resolutions are not legally binding, and there is no function to penalise those who do not follow them.

Non-binding resolutions

In response to the new resolution, Japan’s Commissioner to the IWC said that Japan “will abide by the Convention itself”. This implies that Japan will continue to apply its own interpretation of the Convention, and will not follow the extra steps outlined in the new resolution.

So despite the new emphasis on applying scientific scrutiny to whaling permits, at a higher level than before within the IWC’s structure, this actually doesn’t mean much in practical terms for Japan. The reality is that Japan will continue to act independently of IWC advice due to its view on what Article VIII means.

As a result, Japan is unlikely to stop killing whales any time soon, despite the efforts of Australia, New Zealand and other anti-whaling nations to shut the program down.

Every July southern right whales arrive in the sheltered inlets of southern Australia to breed. These endangered whales were severely depleted by whaling, with up to 150,000 killed between 1790 and 1980.

After more than a century of protection they are recovering well in parts of their range. Off south west Australia their numbers are increasing at nearly 7% each year. The population found in the New Zealand sub-Antarctic is also looking robust. But the population found in south east Australia and mainland New Zealand does not seem to be faring so well.

In a study published today in Nature Scientific Reports we looked at the migration routes of these whales, which may help explain why they have been so slow to recover.

Where do the whales go?

Southern right whales migrate between their breeding grounds off the coast of Australia and New Zealand and feeding grounds in the Southern Ocean.

For a long time we have suspected that these whales show fidelity to their breeding grounds, as individuals return each year to popular tourist sites such as The Head of the Bight in South Australia and to Warrnambool in Victoria. But where exactly they feed has remained a mystery.

For more than 20 years we have studied these whales using small skin biopsies. We looked at genetic evidence and analysis of stable isotopes of carbon and nitrogen. Carbon isotopes provide an indication of where animals are feeding. Combined with genetic evidence, this provides clear insights into who is feeding where, and in part with whom.

We found evidence of genetic structure at both ends of the migratory network of southern right whales. That is animals showed high fidelity and bred within the same populations returning to familiar calving sites in Australia and New Zealand over many years. These animals also showed distinct separation when feeding in the southern ocean.

This suggests that whales that follow different migration routes belong to different subsets of the population, because if whales were moving between routes we would see more genetic mixing.

Migratory culture

Our data suggest that these whales pass on their migration routes culturally – particularly from mothers to their daughters.

Fidelity to migratory routes is widespread in the animal kingdom, from eels and the Sargasso Sea, through Pacific Salmon returning to spawn in only a single river catchment, the great migrations of the African savanna, to the annual migrations of the great whales.

In the marine environment returning to the place of your birth can have an enormous influence on population structure, and is important for assessing stocks of commercial species such as Pacific Salmon, as well as in conserving endangered species.

For long-lived animals, passing on knowledge of migration routes may be more successful than leaving offspring to fend for themselves. If behaviour is socially transmitted and then shared within subsets of a population, it is called culture.

Therefore, in species with long periods of parental care the transmission of parental preferences for breeding or feeding grounds to offspring is termed migratory culture.

Threatened by loyalty

Migratory culture could help explain why some populations of southern right whales are recovering and others aren’t.

When animals that show fidelity to a particular migratory destination are lost, the “memory” of that migratory destination is also lost. The effect is exacerbated when animals are lost across the migratory network, as was the case with whaling. These losses due to rapid reductions in populations can mean that safe havens may remain lost to a population for generations.

Migratory traditions can be a big advantage to long-lived animals by providing young with ready access to proven feeding areas and safe breeding habitat. But in a rapidly-changing environment, such as hat we face today, previously productive feeding grounds may become less productive.

Loyalty to their migration routes might then mean these animals are pushed back to the brink of extinction.

The declaration follows the highly publicised 2014 ruling by the court that Japan’s previous scientific whaling program (JARPA II) was “not for the purposes of scientific research”, making it contrary to international law. Japan concluded JARPA II and announced a new program, NEWREP-A which proposes to kill up to around 4,000 whales over 12 years, beginning this summer.

Japan’s declaration effectively stops the International Court of Justice reviewing or ruling on the legality of NEWREP-A in the future, unless Japan consents to a case being brought against it (hint: that’s incredibly unlikely).

Is Japan’s action legal?

Generally the International Court of Justice can only exercise its power if countries agree to its jurisdiction. They may do this within a treaty, or agree to the court’s power generally, subject to specific limitations.

Japan’s declaration is in the latter category, accepting broad jurisdiction with the exception of “any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea”. This is clearly tailored to the provisions of the International Convention for the Regulation of Whaling, but also excludes review by the court of its other fishing programs.

Japan’s declaration is therefore permitted by international law. It is also something other nations have done. In fact, Australia made a similar declaration in 2002, limiting the jurisdiction of the court over resource disputes. This was done to block a potential court challenge to exploitation of oil and gas reserves by Australian companies in contested areas of the Timor Sea.

The International Convention of the Regulation of Whaling regulates all forms of whaling and since 1982 has imposed a moratorium on commercial whaling. The exception is Article VIII which allows killing whales “for the purposes of scientific research” and which was the subject of the previous legal challenge against JARPA II in the International Court of Justice.

Japan’s declaration doesn’t affect previous rulings. However the court’s JARPA II ruling specifically avoided addressing questions of “scientific merit or importance” about whaling. Rather the court restricted its decision specifically to Japan’s justification for JARPA II, providing limited guidance on how to demarcate between legitimate and illegitimate scientific claims in international law in the future.

The limited ruling, combined with Japan’s limitation on jurisdiction, means we are unlikely to be able to say whether, or when, killing whales in the name of science is truly legal or not.

Weak law, weak science

Japan’s actions (and indeed Australia’s) points to a wider problem in how international law manages the global commons – resources and regions outside of national jurisdiction, such as the open ocean, the deep sea floor, and Antarctica.

Global treaties have historically assumed that science is a matter of common interest (rather than individual, state interest) and therefore not the source of potential legal disputes. There has been an assumption that the achievement of that common interest will be promoted in a more open, and less prescribed, governance framework. Treaty makers have have historically treated science as a discipline which relies on disagreement and self-reform to advance, and hence there has been caution about drafting laws which might interfere with it, or limit its advancement.

This means commons treaties tended towards broad, non-prescriptive definitions of scientific research, leaving states to interpret and apply themselves as science grew and advanced, without interference from other bodies or authorities. While that approach may have been historically justified it is increasingly showing signs of strain.

Like the Whaling Convention, the UNFCCC is based around broadly defined scientific terminology which states are left to interpret and apply internally to themselves. Like the Whaling Convention, the UNFCCC contains no compulsory arbitration provisions.

Of the three states which produce more than half of the world’s carbon emissions (China, the United States and India), only India accepts the compulsory jurisdiction of the International Court of Justice at all, but does so in a way that would prevent the court from reviewing its obligations under a climate change convention. This has effectively stymied attempts by small island states facing disastrous sea level rise to create certainty about the relationship between science and state obligations under that convention.

Subjecting science to the rule of law

While it is true that Japan may be exploiting an apparent loophole so are many states, including Australia. These matters have much further-reaching consequences than just whaling.

The problem Japan’s declaration highlights is not one of law, but one of philosophy; an arguably redundant philosophy which views science as something beyond state self interest and outside the core competency of international courts. Concerningly, this was a view reflected by the International Court of Justice in the whaling case

Yet that view is not necessarily supported by contemporary scientific or legal practice. Journals use peer review to evaluate the scientific veracity of claims. Similarly, the World Trade Organisation (along with domestic courts) has a legal framework to distinguish the better of two or more competing scientific claims.

Unlike most global commons regimes, the WTO operates on the assumption that scientific claims might be used to undermine the free-trade purposes of the regime and be the source of interstate conflict. Hence it sets out rules to evaluate competing scientific claims, and mandates resolution of scientific disputes by an external body in a manner which cannot be avoided by declaration.

It is time we treated the global commons with the same deference we treat global trade and finance.

Japan’s actions serve to highlight the need to subject global commons governance to similar compulsory, objective, external arbitration mechanisms. If science really is the best device to govern such matters, then it must be given the legal traction required to allow it to govern in the first place.

A total of nearly three million whales were killed in the 20th century, according to a new estimate—a number driven by rapid advances in hunting technology and illegal catches by nations like the Soviet Union. And the full number of whales killed may be even higher in what researchers call “the largest hunt in human history.”

The study attempts to tally the number of whales that were killed as whaling transformed in the late 19th and early 20th centuries from an enterprise carried out by men with rowboats to an industrialized effort capable of processing…